Citation Nr: 1756946 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-14 596 ) DATE ) ) On appeal from the Department of Veterans Affairs St. Paul Pension Management Center, St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to April 1988 in the United States Air Force. He died in November 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. In May 2015, the Board denied the appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court vacated the May 2015 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In February 2017, the Board remanded the claim for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's death certificate shows that the cause of his death was urosepsis. At the time of his death, he was service-connected for hearing loss and tinnitus. The appellant contends that his urosepsis was caused by his diabetes mellitus, which, in turn, was caused by exposure to herbicide agents in Thailand. In the May 2015 decision, the Board determined that the service-connected disabilities did not affect a vital organ, accelerate death, or substantially contribute to death, and that urosepsis was not incurred in or caused by service. The Board additionally found there was no credible evidence that the Veteran was exposed to herbicide agents while stationed in Thailand, and that he did not serve in Vietnam. The claim was denied. The appellant appealed that decision and in June 2016, the parties to the appeal determined that the Board erred in failing to properly evaluate the credibility and probative value of the appellant's lay assertions regarding the Veteran's duties in Thailand and possible exposure to herbicide agents. As there was no dispute that the Veteran had active service at Takhli airbase during the Vietnam Era, the parties found that the Board must make a credibility determination as to the appellant's lay statement, and if credible, determine whether it constituted probative evidence that the Veteran worked at the base perimeter. Service records show that the Veteran worked as an aerospace ground equipment technician at the Takhli Royal Air Force Base from November 22, 1967 to August 31, 1968. He supervised personnel in the troubleshooting, repair, removal, and replacement of major components of aerospace ground equipment. Compensation & Pension Service has issued information concerning the use of herbicide agents in Thailand during the Vietnam War. In a May 2010 bulletin, Compensation & Pension Service indicated that it had determined that there was significant use of herbicide agents on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide agent use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicide agents of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, if a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases were the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Stated another way, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide agent exposure on a "facts found or direct basis" should be extended to those veterans. In February 2017, the Board remanded the appeal for development of the Veteran's herbicide agent exposure through the Joint Services Records Research Center (JSRRC). A response from the JSRRC was obtained in October 2017, but the JSRRC's response merely indicated that the Veteran's proximity to the base perimeter could not be determined. At this juncture, the Board finds the evidence is at least in equipoise as to whether the Veteran served near the air base perimeter while working as an aerospace ground equipment technician at the Takhli Royal Air Force Base from November 22, 1967 to August 31, 1968. As directed by the Court, the Board finds the appellant's reports that, prior to his death, the Veteran told her he had worked at the base perimeter, to be both credible and probative. Her statements are both internally consistent and consistent with the record. Caluza v. Brown, 7 Vet. App. 498 (1995); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Additionally, the appellant has submitted maps of the Takhli Royal Air Force Base showing the proximity between the flight line and the base perimeter. There is no evidence in dispute of this. Numerous military personnel records document the fact that the Veteran's military occupational specialty (MOS) consistently placed him on the flight line. For example, in August 1969, it was noted that he bore "the responsibility of dispatching and retrieving AGE equipment to the flight line." This statement was also made in a 1974 personnel document. Moreover, in audiological service treatment records from 1969, 1971, 1975, and 1979, it was documented that his "primary noise exposure" was from the flight line. The above evidence shows that the Veteran served at the Takhli Royal Air Force Base during the Vietnam era, and his MOS placed him near the perimeter of the base through his work on and around the flight line. Thus, at a minimum, the Board thus finds that the matter of whether the Veteran was exposed to herbicide agents is at least in equipoise. As such, a VA medical opinion is needed to address whether the Veteran's cause of death, urosepsis, was caused by his diabetes mellitus, which is presumed to be the result of exposure to herbicide agents resulting from his service in Thailand. While the appellant has submitted general medical articles in support, a medical opinion in this regard has not yet been obtained. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to a VA examiner to provide an opinion regarding the claim for service connection for the cause of the Veteran's death. The death certificate shows that the cause of his death was urosepsis. The examiner must provide an opinion as to whether the Veteran's diabetes mellitus, which is presumed to be the result of exposure to herbicide agents resulting from his service in Thailand, (i.) primarily caused death, (ii,) substantially contributed to death, (iii.) resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the diseases primarily causing death, or (iv.) was of a progressive or debilitating nature, such that it had a material influence in accelerating death. 2. Thereafter, readjudicate the claim, considering all evidence. If the benefit sought remains denied, the appellant and her representative should be provided a SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).